Opinion
Docket Nos. 128238, 132689.
Submitted April 7, 1994, at Detroit.
Decided June 7, 1994, at 9:35 A.M. Leave to appeal sought.
Thrun, Maatsch Nordberg, P.C. (by Philip A. Erickson), for Warren Consolidated Schools.
Fitzgerald, Cox Hodgman (by William H. Horton and Tammy J. Reiss), for National Gypsum Company.
Hill Lewis (by Bradley A. Carl), for Pfizer, Inc.
Harvey, Kruse, Westen Milan, P.C. (by Bradley S. Mitseff and Kirt B. DeVries), for United States Mineral Products.
Dykema Gossett (by Robert J. Franzinger, Ted T. Amsden, and Ronald J. Torbert), for United States Gypsum Company.
This is an asbestos case. Plaintiff, Warren Consolidated Schools, appeals as of right from the trial court's orders granting summary disposition in favor of defendants based on the expiration of the applicable period of limitation. We affirm.
I. FACTS
On April 4, 1986, plaintiff filed this products liability action against numerous producers, manufacturers, and distributors of asbestos-containing building materials, seeking as damages the costs of administering its district-wide program of analysis, assessment, and abatement of such materials, which had been found in some of its school buildings.
The trial court granted defendants' motions for summary disposition in two separate opinions and orders, from which plaintiff timely appealed. The appeals have been consolidated for our review.
II. ISSUES
The principal issue on appeal is whether the trial court erred in granting the motions for summary disposition pursuant to MCR 2.116(C)(7) on the ground that the claim was barred by the statute of limitations. Plaintiff contends that the trial court erred in holding that plaintiff had the burden of proving when it discovered or should have discovered its cause of action and in finding that plaintiff failed to establish any genuine issue of material fact regarding when its cause of action accrued; plaintiff also claims that the period of limitation was tolled by the filing of a class action in federal court. Secondly, plaintiff challenges the trial court's dismissal of its nuisance claim.
Our resolution of the first two issues renders it unnecessary to consider plaintiff's remaining issue relating to its request to admit newly discovered evidence.
III. STATUTE OF LIMITATIONS: DISCOVERY RULE
The parties do not dispute that the applicable limitation period in this case is three years, pursuant to MCL 600.5805(8) and (9); MSA 27A.5805(8) and (9). With respect to all defendants except Basic, Inc., the complaint was filed on April 4, 1986. A separate complaint against Basic, Inc., was filed on November 17, 1988.
According to the so-called discovery rule, a products liability claim accrues when the plaintiff discovers or, through the exercise of reasonable diligence, should have discovered that it has a possible cause of action. Moll v Abbott Laboratories, 444 Mich. 1, 20-25; 506 N.W.2d 816 (1993) (rejecting the "likely cause of action" language previously used by this Court). The Court in Moll specifically declined to adopt a subjective test of causation. Id. at 16-20. A plaintiff need not be able to prove each element of the claim, nor may the claim be held in abeyance indefinitely until the plaintiff obtains professional assistance to determine the existence of the claim. Detroit Bd of Ed v Celotex Corp (On Remand), 196 Mich. App. 694, 706; 493 N.W.2d 513 (1992). Where the facts are undisputed, whether a plaintiff's action is barred by the statute of limitations is a question of law to be determined by the trial court. Moll, supra at 5-6.
A. BURDEN OF PROOF
In general, the burden of proof rests on a defendant to establish all the facts necessary to show that the period of limitation has expired. Tumey v Detroit, 316 Mich. 400, 410-411; 25 N.W.2d 571 (1947). However, where it appears that the cause of action is prima facie barred, the burden of proof is upon the party seeking to enforce the cause of action to show facts taking the case out of the operation of the statute of limitations. McLaughlin v Aetna Life Ins Co, 221 Mich. 479, 483; 191 N.W. 224 (1922); Zenith Industrial Corp v Dep't of Treasury, 130 Mich. App. 464, 468; 343 N.W.2d 495 (1983).
In the present case, we agree with the trial court's analysis that plaintiff's claim appeared on its face to be time-barred, because it arose when the asbestos products were originally installed. Thus, the burden shifted to plaintiff to show that application of the discovery rule would effectively toll the period of limitation. McLaughlin, supra; Zenith, supra. We note that this conclusion is in accord with the reported decisions of other jurisdictions. See, e.g., Van Buskirk v Carey Canadian Mines, Ltd, 760 F.2d 481, 487 (CA 3, 1985); Olson v A H Robins Co, Inc, 696 P.2d 1294, 1297 (Wyo, 1985); April Enterprises, Inc v KTTV, 147 Cal.App.3d 805, 832; 195 Cal.Rptr. 421 (1983); Bickell v Stein, 291 Pa. Super. 145, 150; 435 A.2d 610 (1981).
B. ACCRUAL OF CLAIM
In the present case, the trial court held as follows:
[Plaintiff's own] documentation presents overwhelming evidence that plaintiff should have known or must have known it would have to spend money to abate an asbestos problem some time in the late 1970's or 1980's. Although plaintiff claims that it never knew it had asbestos in any building prior to receiving its consultant's report in the summer of 1983, plaintiff would have known several years earlier had it heeded repeated warnings from the Michigan Department of Public Health to inspect its buildings for friable asbestos. Plaintiff cannot rely upon improperly conducted building inspections and the assurances therefrom to push back its discovery and accrual dates several years. . . . Without belaboring the point, the Court notes that plaintiff received direct warning of the cancer and other risks associated with airborne asbestos from 1977 on. Additionally, developments throughout the 1970's with regard to federal asbestos statutes and regulations put out similar notice to anyone charged with maintenance and construction of public buildings. Plaintiff's own brief details the tightening asbestos noose prior to 1980. Thus, although the Court cannot pinpoint the exact date when plaintiff should have discovered its need to abate an asbestos hazard, the Court agrees with defendants that the need should have been discovered prior to April 4, 1983.
In light of the undisputed facts, plaintiff's claim accrued at least three years before suit was filed, because, had it exercised reasonable diligence, it should have discovered by that time that it had a possible cause of action. Moll, supra at 5; cf. Detroit Bd of Ed, supra at 707.
Plaintiff asserts that each separate asbestos-containing product in each of its buildings gave rise to a separate injury and a separate cause of action, and that the statute of limitations should have been applied on a building-by-building, product-by-product basis. We disagree. Those injuries were not independent ones that would warrant departure from the general rule that subsequent damages do not give rise to a new cause of action. Moll, supra at 18-19.
C. TOLLING OF THE PERIOD OF LIMITATION BY FEDERAL CLASS ACTION
Plaintiff argues that the period of limitation was tolled by the filing on January 17, 1983, in the United States District Court for the Eastern District of Pennsylvania of a class action on behalf of school districts throughout the nation against asbestos manufacturers and distributors. Plaintiff opted out of the federal action before the class was finally certified.
Where class certification is later denied, the commencement of a class action suspends the applicable period of limitation with respect to all asserted members of the class who would have been parties had the suit been permitted to continue as a class action. Crown, Cork Seal Co v Parker, 462 U.S. 345, 353; 103 S Ct 2392; 76 L Ed 2d 628 (1983); American Pipe Construction Co v Utah, 414 U.S. 538, 554; 94 S Ct 756; 38 L Ed 2d 713 (1974); Lee v Grand Rapids Bd of Ed, 148 Mich. App. 364, 369; 384 N.W.2d 165 (1986). To hold otherwise would frustrate the function of a class action, which is to avoid multiplicity of activity. American Pipe, supra at 551.
Plaintiff has failed to persuade us that the American Pipe rule should be extended to the situation where, as here, the class is certified and the plaintiff elects to pursue its own case. See Wachovia Bank Trust v Nat'l Student Marketing Corp, 209 US App DC 9, 13, n 7; 650 F.2d 342 (1980); Pulley v Burlington Northern, Inc, 568 F. Supp. 1177, 1180 (D Minn, 1983). Under the circumstances, the plaintiff would not have been a party had the suit been permitted to continue as a class action. Crown, Cork Seal, supra; American Pipe, supra. We agree with the trial court that there is no public policy reason to allow a plaintiff to enjoy the tolling benefit of a class action in which it chose not to join, and to file an otherwise stale cause of action. Hence, the filing of the class action did not toll the period of limitation in the present case.
D. CONCLUSION
We conclude that the trial court properly granted summary disposition to defendants on the ground that the period of limitation had expired without being tolled by the filing of the class action.
II. NUISANCE CLAIM
Plaintiff next claims that the trial court erred in dismissing its nuisance cause of action. We disagree. This Court and others have previously rejected nuisance as a theory of recovery for asbestos contamination. Detroit Bd of Ed, supra at 709, citing cases. Manufacturers, sellers, or installers of defective products may not be held liable under a nuisance theory for injuries caused by the defect. Id. at 710.
Affirmed.